The Berkline Corp.

THE BERKLINE CORPORATION 685 Employer had previously given the unorganized plants the same wage increase as was negotiated for its organized employees when weighed against ,the facts that there is no shQwixig that the Employer made a practice of announcing the progress of the negotiations, did not an- nounce the progress in all plants, and so scheduled the announcement as to fall 1 day before the election, when it would have the "maximum possible impact on the minds of the employees," 10 does not constitute a credible explanation for the timing of the announcement. In view of the foregoing, we find that the timing of the announcement of the wage increase, was calculated to, and did, interfere with the election. Accordingly, we shall set it aside and direct a new election. [The Board set aside the consent election.] [Text of Direction of Second Election omitted from publication.] 10 Food FaSr Stores, supra ; Bata Shoe Company, Inc., supra. The Berkline Corporation and Local 2888, United Brotherhood of Carpenters and Joiners of America The Berkline Corporation and Local 2888, United Brotherhood of Carpenters and Joiners of America . Cases Nos. 10-CA-2801 and 10-CA-2979. April 9, 1959 DECISION AND ORDER On August 20, 1958, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that these allegations of the complaint be dismissed. Thereafter, the Respond- ent, General Counsel, and Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modification:1 1 Contrary to the Trial Examiner, the evidence shows that the Respondent learned that Thomas was a union member in March 1957 , and not in July, as the Trial Examiner 123 NLRB No. 59. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found, inter alia, that the Respondent violate& Section 8 (a) (5) and (1) of the Act by declining to furnish the Union, with a written list of all its shop rules, pursuant to the Union's re- quest on January 23, 1957. We disagree. The pertinent facts are as. follows : On November 29, 1955, the Union was certified by the Board as the= representative of the Respondent's production and maintenance em- ployees. At a negotiating meeting between the parties on January 27, 1956, prior to the execution of the contract herein, the union repre- sentatives asked the Respondent if it had any written shop rules. The latter's officials replied that it had no written rules, as the Com- pany had found no need for them. After some further discussion about this matter, the Respondent stated that it did not wish to codify its rules on the ground that this would tend to cause greater confusion than it would save, its reason being that it would be almost impossible to have a shop rule which would cover every given situation. The union representatives thereupon agreed that it would not be necessary for the Respondent to reduce its rules to writing. On March 23, 1956,. the parties entered into a 1-year contract. On January 23, 1957, the Union asked the Respondent to give it a. written list of all the company rules. At the time the request was made, the Union informed the Respondent that it wanted information as to the rules because "every time we turned around [the Respondent]; was firing some of the boys for violating the rules." The Respondent, stated that it would give its answer to the Union in a few days. On January 25, the Respondent gave the Union the following letter : We regret that we will be unable to comply with the request. It. seems almost impossible to write all the rules a company would operate by. I feel this list, rather than promote harmony, would. tend to create confusion, in that should we enforce a rule not listed, we most certainly would be liable for a grievance. The, Contract states, "The Company shall be permitted to make and enforce such shop rules as it deems advisable which do not abro- gate any provision of this agreement." We shall continue to do this. No further request was made thereafter by the Union. The Trial Examiner found that the Union was entitled to a written list of rules on January 23, 1957, on the grounds that (a) the contract would ex- pire on March 23, 1957, and it was necessary for the Union to know what the rules were in order to decide whether it wished to bargain found. The record is hereby corrected to reflect such fact . Nevertheless, for the reasons stated by the Trial Examiner, we agree with his findings that the Respondent was not discriminatorily motivated in not reemploying Thomas as well as the other individuals involved herein. THE BERKLINE CORPORATION 687 about them during contract negotiations; and (b) such information was necessary to the Union for purposes of administering its current agreement. However, as to (a), although the contract had only 2 more months to run when the Union requested the rules on January 23, 1957, there is nothing in the record to indicate that the Union informed the Re- spondent that it sought such information in connection with future' contract negotiations or that the Respondent had any cause to believe that this was the reason for the Union's request. While we might not in a different situation require that a union specify the reason for seeking information-i.e., whether it was sought for purposes of administration of the current contract or negotiations of future con- tracts-we believe that where, as here, the Union (as we find below) has waived its right to the information for the purposes of adminis- tering the current contract, the employer is entitled to know whether the information is sought for that reason or for a different purpose' not covered by the waiver. We do not believe it equitable to hold that the Respondent unlawfully withheld the information absent any notice that it was sought for a purpose to which the waiver did not apply?: Accordingly we find, contrary to the Trial Examiner, that the, Respondent did not violate the Act by declining to furnish the Union with a written list of rules insofar as such list related to future' contract negotiations.3 As to (b), the testimony is undisputed that, as stated above, the Union agreed during the bargaining session on January 27, 1956, that the Respondent did not need to reduce its rules to writing. Indeed„ the Trial Examiner so found. Nevertheless, the Trial Examiner did. not find any waiver, apparently because he believed that there could be no waiver without a specific quid pro quo. However, although a quid pro quo may be indicative of a waiver, it is not a prerequisite to^ finding a waiver. We find, therefore, that there was an effective oral waiver by the Union in its precontract negotiations of its right to, receive a written list of rules in connection with the administration of the 1956 contract 4 2 The dissent cites the Whitin Machine Works case for the proposition that a union need' not state the purpose of its request for information. However, there the union did state the purpose of its request for wage data-namely, to aid it in bargaining negotiations- and the entire thrust of the Board 's language, cited by the dissent , is merely that it was not necessary for the union to show how such data was relevant to bargaining. That is not the issue here, which is only whether , in the context of a waiver of information for one purpose, the Union , if in fact seeking the data for a different purpose, should be required to inform the Respondent that it is seeking it for such different purpose. 3 Moreover, we note that the 1956 contract had a 60-day automatic renewal provision and there is nothing in the record to show that the Union took any steps to forestall its automatic renewal. All that the record reveals is that apparently on March 20, 1957, 3 days before the anniversary date of the 1956 contract , the parties signed a memorandum extending that contract pending the disposition of the instant case. 4We disagree with the dissent ' s conclusion that the provision of the contract limiting the establishment of working rules to those that "do not abrogate any provision of this Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD While it is true, as the dissent states, that information concerning working rules may be shown to be necessary in order that a bargaining representative may efficiently perform its duties as such agent, it is equally true that a representative, for reasons of its own, may re- linquish its right to such information. Here the Union, having agreed that Respondent need not codify its rules, may not, at its own option, disavow such agreement at some future date, still within the waiver's term, because it has become dissatisfied with its bargain. The Re- spondent may not be held liable for an unfair labor practice because it insisted on holding the Union to its waiver. Our dissenting colleagues, however, state that they do not agree with the majority's finding that the Union waived its right to receive a written list of working rules. They also state that the Trial Ex- aminer made no such finding. However, the facts herein are un- disputed that the Union, during the January 27, 1956, bargaining session, did agree that Respondent did not need to codify its rules.5 As shown above, the Trial Examiner so found. To us such clear and unmistakable agreement constitutes, in law, a waiver of the Union's right to receive a written list of rules during the term of the 1956 contract.' In finding no waiver here, the dissent notes that the Respondent did not rely upon such waiver when, in its January 25, 1957, letter, it declined to furnish the Union with a written list of rules. We are of the opinion that, the waiver having been established, it was not neces- sary for the Respondent to state that it was relying 'thereon in order to escape liability for an unfair labor practice. We know of no rule to the contrary.' Contrary to the Trial Examiner we find the Respondent did not violate Section 8 (a) (5) and (1) of the Act by declining to furnish rules pursuant to the Union's request of January 23, 1957. The .agreement" proves that a waiver could not have been given by the Union, because without a written list of rules the Union allegedly would not be able to police the contract. On the contrary, should any action of the Respondent have been deemed by the Union to abrogate the contract, there was nothing in the waiver to bar the Union from inquiring whether such action was taken pursuant to some rule and, if so, there was nothing to prevent the content of the rule being communicated orally to the Union. Nor do the parties contend otherwise. This procedure, we believe, would have enabled the Union adequately to administer the contract. Contrary to the implication of the dissent, we recognize that the contract provisions, themselves, do not establish a waiver, and we do not rely thereon, but gather we rely solely on the oral waiver during the precontract discussions. 5 The dissent apparently agrees with our factual findings herein, for it states that at the above bargaining session the "Union accepted the Respondent's assurances about the absence of, and lack of need for, written work rules." We find that such conduct on the part of the Union constituted, in effect, a waiver of the Union's right to receive a written list of rules during the term of the 1956 contract. To find a waiver, it is not necessary that the term "waiver" itself be used. Speictel Corporation, 120 NLRB 733. 7 We note that the uncontradicted testimony shows that the Respondent believed that the Union's waiver of the rules had been incorporated in the agreement by the con- tractual provision set forth in the letter. THE BERKLINE CORPORATION 689 Union had agreed that no written rules would be required in connec- tion with the administration of the 1956 contract. Nowhere is there any evidence of an indication that the request was related to, or for the purpose of, aiding the Union in future contract negotiations. All the evidence indicates that the request was made in connection with the administration of the 1956 contract. As we have found, in agreement with the Trial Examiner, that the Respondent did not violate the Act in any other respects, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBERS BEAN and FANNING, concurring in part and dissenting in part : We agree with the majority except in their finding that the Re- spondent's refusal to furnish the Union with a written list of its shop rules was not unlawful. Sixty days before the expiration of its existing collective-bargain- ing contract with the Respondent, the Union asked the Respondent for a written list of the Company's rules. The Union's representative explained that it wanted the list because "every time we turned around the Respondent] was firing some of the boys for violating the rules." The Respondent refused the request stating that it would be difficult to write all the rules for company operation, a written list would create confusion "in that should we enforce a rule not listed, we most certainly would be liable for a grievance," and the contract gave to the Respondent the right "to make and enforce such shop rules as it deems advisable which do not abrogate any provision of this agreement." The majority finds, contrary to the Trial Examiner, that the Re- spondent could lawfully refuse to furnish the requested information because "there is nothing in the record to indicate that the Union informed the Respondent that it sought such information in connec- tion with future contract negotiations or that the Respondent had any cause to believe that this was the reason for the Union's request," and that the Union in its precontract negotiations had orally waived the right to receive the list of rules in connection with the administra- tion of the 1956 contract. Information about "rates of pay, wages, hours of employment, or other conditions of employment," the subject matters concerning which union and employer must bargain, is indispensable to intelli- gent and effective collective bargaining, whether for a new agreement or in the administration of an existing contract, including the process- ing of grievances. This is so obviously true that former Chairman 508889-60-vol. 123 45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farmer said of an employer's obligation to furnish wage data information : 8 The exact phrasing by which it is requested, or the specific reason for requesting it, if any, are not controlling... . I would not require that the union show the precise relevancy of the requested information to particular current bargaining issues. It is enough for me that the information relate to the wages or fringe benefits of the employees. Such information is obviously related to the bargaining process, and the union is therefore entitled to ask and receive it. This position of Chairman Farmer has been endorsed by other mem- bers of the Board I and specifically approved by the court 1° as stating the correct rule of law in these situations. Although Chairman Farmer stated the rule in terms of requests for wage data information, it is equally applicable to requests for data about other bargainable matters. As recently declared by the Seventh Circuit Court of Appeals: 11 . . . the courts have announced and applied the general principle that an employer is obligated to furnish the union with data and information relevant to issues about which the parties are obli- gated to bargain. Work rules are included in the subjects about which an employer must bargain.12 Hence, the Respondent was required to furnish the Union upon request with information as to any work rules it might have had and the refusal to do so was a violation of Section 8 (a) (5) of the Act.13 As we understand the majority's position, if the union representa- tive had prefaced his demand for information about work rules with the statement, "I want such information in connection with future contract negotiations," the Respondent's refusal to comply with the request would have been unlawful. This seems to us un- s IVhitin Machine Works, 108 NLRB 1537, 1540-1541, enfd. 217 F. 2d 593 (C.A. 4), cert. denied 349 U.S. 905. 0 The other members of the majority in the Whitin Machine Works case, supra, agreeing with Chairman Farmer said : ". . . in these cases it is sufficient that the information sought by the Union is related to the issues involved in collective bargaining, and that no specific need as to a particular issue must be shown." Id. at p. 1539. See also, e.g., Glut Raven Knitting Mills, Inc., 115 NLRB 422, set aside on other grounds 235 F. 2d 413 (C.A. 4) ; Pine Industrial Relations Committee, Inc., 118 NLRB 1055-1058, 1059, enfd. 263 F. 2c1 483 (C.A., D.C.). 10Boston-Herald Traveler Corporation v. N.L.R.B., 223 F. 2d 58 (C.A. 1) ; N.L.R.B. v. The Item Company, 220 F. 2d 956 (C.A. 5), cert. denied 350 U.S. 836, rehearing 'denied 350 U.S. 905; Taylor Forge & Pipe Works v. N.L.R.13., 234 F. 2d 227 (C.A. 7) ; N.L.R.B. v. F. IV. Woolworth Co., 352 U.S. 938, reversing 235 F. 2d 319 (C.A. 9). n Taylor Forge & Pipe Works v. N.L.R.B., supra, at p. 231. 12 Thomason Plywood Corporation, 109 NLRB 898, 911, enfd. 222 F. 2d 364 (C.A. 4) ; Tower Hosiery Mills, Inc., 81 NLRB 658, 660, enfd. 180 F. 2d 701 (C.A. 4) ; The Timken Roller Bearing Co., 70 NLRB 500, 502, set aside on other grounds, 161 F. 2d 949 (C.A. 6). 13 This is not to say that the Respondent was required to formulate rules for the future. THE BERKLINE CORPORATION 691 realistic and a retreat from the commonsense position of the Board in the TVhitin Machine case that information about bargainable mat- ters is so basic to the collective-bargaining process that it must be furnished upon request, no particular form of words being necessary to assure compliance. Collective bargaining is not a game or a stylized play with the participants required to make formal incantations in order to obtain the ingredients necessary to effective collective bar- gaining. It was obvious from the explanation which accompanied the request for a list of rules that this was no idle search for informa- tion nor a request to formulate rules which did not exist. The Union was seriously concerned about the discharge of its members for violat- ing rules which were not published and it plainly intended, as collec- tive bargaining representative, to do something about it. But until it received necessary and relevant information it was not required to decide whether to seek a remedy in the negotiation of a new contract or in the administration of the existing one, including the processing of grievances. Moreover, the Respondent's answering letter was hardly calculated to allay the uneasiness of the Union and the men it represented, engendered by the discharges. For that letter did not refuse to give the information requested because of the form in which the request was made, but because of the Respondent's belief that it had the absolute right to make rules, even ex, post facto rules, without consultation with the statutory representative of its employees. The majority also says that the Union had orally waived its right to receive a written list of rules in connection with the administration of the 1956 contract, and therefore the refusal to comply with the request for information was not unlawful. The Union had a statu- tory right to receive the information for which it asked." And al- though the Board has recognized that a union may waive its statutory rights, it has said that such waiver "will not readily be inferred." 15 To be effective the waiver must be expressed in "clear and unmis- takable" 16 or "clear and unequivocal" 11 language. The evidence from which the majority infers waiver is embodied in the following testimony of the Respondent's attorney as to the discus- sion which preceded agreement on the contract provision which provides that "The Company shall be permitted to make and enforce such shop rules as it deems advisable which do not abrogate any provision of this agreement." [Emphasis supplied.] The attorney testified : 1q See International News Service Division of The Hearst Corporation, 113 NLRB 1067, 1070. 15 Ibid. 1e Ibid.; Tide Water Associated Oil Company, 85 NLRB 1096, 1098. 17 California Portland Cement Company, 101 NLRB 1436 , 1439; The Item Company, 108 NLRB 1634, 1640, enfd . 220 F. 2d 956 (C.A. 5), cert. denied 350 U.S. 836, rehearing denied 350 U.S. 905. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the meeting which was held on January 27th, the company presented a proposal with reference to recognition and shop rules. During the discussion following presentation of that proposal, Mr. Orr and Mr. Duncan, who were serving as the spokesmen for the union representatives, inquired as to whether the company did or did not have written shop rules. They were informed by the company that there were no written shop rules in existence; that the company had not found that they had any need for them. There was some further discussion about the matter. It was suggested by the company that there was no need for written shop rules since they would tend to cause greater confusion than they would save, on the theory that it would be almost impossible to have a shop rule which would cover every given situation. The representatives of the union to that replied that they thought that would be all right, and the provision as it was contained in the proposal was agreed to by all, and that particular provision was accepted as evidenced by the initialing of the paper upon which the proposal was written. [Emphasis supplied.] This evidence is far from establishing, "clearly and unmistakably," agreement on the part of the Union that, during the life of the con- tract, the Respondent would not have to furnish information about work rules. On the contrary, it shows nothing more than that the Union accepted the Respondent's assurances about the absence of, and lack of need for, written work rules, and therefore agreed to the contract provision giving the Respondent the right unilaterally to make and enforce shop rules subject, however, to the very important qualification that these rules "do not abrogate any provision of this agreement." This qualification clause flatly negatives any idea of waiver. For how is a determination to be made as to whether a rule violates "any provision of this agreement" unless information about the work rule is to be given the Union? Further, even apart from the qualification clause, the mere fact that the Union had agreed that the Respondent could unilaterally establish work rules would not ipso facto establish that the Union had waived its right to receive information about work rules that might from time to time be put into effect by the Respondent." The Trial Examiner concluded that the evidence did not establish that, during the contract negotiations, the Union clearly waived its 18". . . assuming arguendo that the new contract authorized respondent to bypass the Union in granting individual employee merit increases , such a construction of its terms would not ipso facto establish a waiver of the Union 's right to obtain information as to the merit increases thus unilaterally granted. The right to grant merit increases without the consent of a statutory bargaining agent obviously should not imply the right to with- hold information thereon, since such a rule might foster discrimination against union adherents in the granting of merit increases , and thereby promote that industrial strife and unrest which the Act seeks to avoid ." N.L.R.B . v. The Item Company, 220 F. 2d 956, 959 ( C.A. 5), cert. denied 350 U.S. 836, rehearing denied 350 U.S. 905. THE BERKLINE CORPORATION 693 right to receive information about work rules. We agree with him. We do not construe his reference to a quid pro quo as meaning that it is a prerequisite to a waiver. Rather, we assume that he inferred, as we do, that a union would not ordinarily so severely handicap itself in the day-to-day administration of its collective-bargaining contract, including the vital function of processing grievances, by relin- quishing, without receiving any tangible benefit in return, its statu- tory right to receive such relevant information. The fact that it did not "trade away" its statutory right is strong evidence that it did not intend to waive it. A final word. After long litigation, the Board and the courts have with considerable definitiveness determined the kinds of information a union may request and the circumstances under which the request must be honored. These are ground rules for collective bargaining and their certainty has helped in achieving the objectives of the Act. The majority decision now casts serious doubt upon the validity of the rules as they have been judicially formulated. This is bound to have an unsettling effect and to usher in a new and protracted period of litigation about a matter which is an indispensable preliminary to effective collective bargaining. For the foregoing reasons, we dissent. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Charges and amended charges having been filed and served , complaints having been issued, and answers having been filed in each of the above -entitled cases, a hearing, pursuant to notice and an order of the Regional Director consolidating the cases, was held before W. Gerard Ryan , the duly designated Trial Examiner. The issues presented by the pleadings are whether The Berkline Corporation, herein referred to as the Respondent, violated Section 8(a)(5) and ( 1) of the National Labor Relations Act, 61 Stat. 136, as amended , herein called the Act, by refusing to furnish to United Brotherhood of Carpenters and Joiners of America , and its Local 2888 , herein called the Union , information setting forth the Respondent's shop rules governing the working conditions of its employees in an appropriate unit; and whether the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate or otherwise rehire six employees who had been laid off. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence pertinent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. The parties waived oral argument. Briefs have been received from the General Counsel and the Respondent. Upon the entire record and from my observations of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Berkline Corporation is now, and has been at all times material herein, a Tennessee corporation , maintaining its principal office and plant of business at Morristown, Tennessee, herein called the Morristown Plant, where it is engaged in the manufacture and sale of chairs and household furniture . During the calendar year 1956, which period is representative of all times material herein, the Respondent, at the Morristown Plant, sold and shipped finished products valued at more than $50,000 directly to customers located outside the State of Tennessee . I accordingly find that the Respondent is engaged in commerce within the meaning of the Act. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, and its Local 2888, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain (Case No. 10-CA-2801) The complaint alleged, the answer admitted, and I find that all production and maintenance employees at the Respondent's Morristown, Tennessee, chair manu- facturing plant including over-the-road and local truckdrivers, garage maintenance employees, the general handyman, production control clerk, industrial engineering clerk, lumberyard department employees, frame department record clerks, the upholstery department clerks, shipping department clerks, checkers, wrappers, car- loaders, truckloaders, janitor, upholstery department expediter, and building mainte- nance department employees; but excluding purchasing, addressograph, piece-rate records, payroll, accounts receivable, and order processing clerks, typists, file and mail clerks, telephone operator, other office clerical employees, technical employees in the industrial engineering department, other technical employees, watchmen, guards, nurses, other professional employees, supervisory trainees engaged in processing sales records, the garage foreman, and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. On November 29, 1955, in Case No. 10-RC-3179 (unpublished), the Union was certified by the Board as the exclusive bargaining agent for the employees in the appropriate unit. At the conclusion of negotiations on March 23, 1956, the Respondent and the Union executed a collective-bargaining contract, for the term of 1 year only. The contract has been extended pending disposition of the instant matters, and is currently in full force and effect. On January 23, 1957, the Union asked the Respondent for a set of company rules.' On January 25, the Respondent refused to comply with the request in a letter, the pertinent parts of which stated: We regret that we will we unable to comply with the request. It seems almost impossible to write all the rules a company would operate by. I feel this list, rather than promote harmony, would tend to create confusion, in that should we enforce a rule not listed, we most certainly would be liable for a grievance. The Contract states, "The Company shall be permitted to make and enforce such shop rules as it deems advisable which do not abrogate any provision of this agreement." We shall continue to do this. The issue thus presented is whether the Respondent refused to bargain with the Union in violation of Section ^8(a)(5) of the Act by refusing on January 25, 1957, to comply with the Union's request for a set of the company rules. The Respondent contends that it has not refused to bargain with the Union in that it is not obligated to supply the information to the Union because (1) the Respondent has no written shop rules and never had any, and therefore could not furnish the Union with something it did not and does not have; (2) since the question of not having written shop rules was one of the subjects of negotiation in the bargaining sessions preceding the collective-bargaining agreement and the Union having agreed that it was all right with it not to have written shop rules, the Respondent was not obligated thereafter, during the life of the conract, to bargain thereon; and (3) the provisions of the contract hereinafter set forth are further reasons why it may not be said that the Respondent refused to bargain. At a negotiation meeting on January 27, 1956, the Respondent presented a pro- posal with reference to recognition and shop rules. During the discussion which followed that proposal, the union representatives inquired as to whether the Re- spondent did or did not have written shop rules. They were informed by the Respondent that there were no written shop rules in existence; that the Company had not found that they had any need for them. During further discussion the Respondent suggested that there was no need for written shop rules since they would tend to cause greater confusion than they would save, on the theory that it would be almost impossible to have a shop rule which would cover every given situation. The union representatives replied that they thought that would be all right. The contract arrived at was dated March 23, 1956, and among its various provisions states: 1 No further request was thereafter made by the Union. THE BERKLINE CORPORATION 695 The Company shall be permitted to make and enforce such shop rules as it deems advisable which do not abrogate any provision of this agreement. (Article II ) and in article XI further provides: During the life of this agreement, the respective parties hereto agree that the other shall not be obligated to bargain collectively with respect to any matter referred to or covered in this agreement, or with respect to any matter not specifically referred to or covered in this agreement, even though such matters or subjects may not have been within the knowledge or contemplation of either of the parties at the time they negotiated or signed this contract. It is a fact which is not disputed that the Respondent does have rules and regula- tions regardless of whether or not they all be in writing.2 The record shows that em- ployees have been discharged for violations of the rules since the collective-bargaining agreement was negotiated. Foreman Joseph LeClaire testified that a person with less seniority may be called back to work sooner if he sees she is cooperative and quality conscious, and abides by the rules and regulations of the Company. I believe that the Union on January 25, 1957, was entitled to have furnished to it written information as to what were the rules and regulations of the Respondent. The contract year would expire on March 23, 1957, and it was necessary for the Union to know what the rules and regulations were in order that it might arrive at an intelligent decision as to whether or not it wished to negotiate on such rules when the time came to consider a further agreement. Such request for the information did not in any way abrogate the provision of the contract that the Company could unilaterally establish rules and regulations. Such information was also important to the Union in its administration of the collective-bargaining agreement. Nor can the provision in the contract in article XI, quoted above, be construed to the effect that the Union relinquished its right to the information during the life of the contract. The contract is silent on whether or not the Respondent must furnish such informa- tion to the Union. The record does not establish any clear waiver during negotiation meetings on the part of the Union to such information; no part of the contract was agreed upon as a quid pro quo for the relinquishment of the Union's right to be in- formed as to what the rules and regulations of the Company were. The information requested by the Union is relevant to the administration of the contract and for con- sideration with respect to whether the Union desires to negotiate concerning such rules and regulations in possible forthcoming negotiation sessions for a new contact. I find no merit in the Respondent's contentions that the Union, in requesting the in- formation on the shop rules, did not state that they were for use in collective bargain- ing and thereby failed to make an appropriate request without which the Respondent may not be held to be in violation of the Act. At the time the request was made, the union representative, Clarence McKinney, in effect, stated to Jack Moody, the Re- spondent's personnel director whose duties include the "interpretation of the con- tract," that the reason the Union wanted information on the rules was "that every time we turned around he was firing some of the boys." I consider such request to be sufficient demand upon the Respondent for information concerning its rules and regulations. I find no merit to the Respondent's further answer that the collective- bargaining agreement is a bar to the jurisdiction of the Board as to the matters alleged to be violations of Section 8(a)(5) and (1) of the Act. Viewing the entire record, I find that the Respondent failed and refused on January 25, 1957, to furnish to the Union the information pertaining to shop rules and regulations which was requested by the Union on January 23, 1957; and that the Respondent has thereby violated Section 8(a)(5) and (1) of the Act. B. The alleged violation of Section 8(a)(3) and (1) of the Act (Case No. 10-CA-2979) The complaint alleged and the answer denied that on or about and since March 1, 1957, the Respondent failed and refused to reinstate or otherwise rehire Edward R. Hopson, Williard Hurst, John H. Wilmouth, and Dudley W. Kesterson because of their membership in and activities on behalf of the Union and because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection; and that for the same reasons, on or about and 2 For example, one of the written rules which the Respondent posted was that there was to be no fighting on company premises. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since March 23, 1957, the Respondent failed and refused to reinstate or otherwise rehire Ruby Thomas and Lavinia Deering. The answer denied the commission of any unfair labor practices and for further answer averred that none of the employees named in the complaint complied with article VIII (f) of the collective-bargaining agreement; and therefore they lost or forfeited their rights , if any, to be reinstated or to be employed in any other avail- able job for which they were qualified . The answer further denied that any of the employees named in the complaint were entitled to be reinstated or rehired or that the Respondent was under any obligation or duty to reinstate or rehire any of them. For a further answer, the Respondent pleaded the collective -bargaining agreement as a bar to this proceeding on the grounds that said agreement contains a grievance procedure which provides the procedure , method, and manner of determining and settling any and all alleged disputes and alleged grievances between the Respondent and the Union and between the Respondent and an employee . An amended answer pleaded the statute of limitations contained in Section 10(b) of the Act with respect to the allegations in the complaint referring to Hopson , Hurst, Wilmouth, and Kesterson. There is no merit to the Respondent's asserted defense that the employees named in the complaint 4ost or forfeited their rights, if any, to be reinstated or to be em- ployed in any other available job for which they were qualified , because they did not comply with article VIII(f) of the collective-bargaining agreement by giving: written notice to the Respondent every 30 days during layoff that they desired to be restored . There is no such requirement in the collective-bargaining agreement. Article VIII ( f) relates to the ways that employees shall lose their seniority and: provides as follows, when read in its entirety: Article VIII-Seniority Employees shall lose their seniority because of the following: (f) When laid off, he does not at least once every thirty ( 30) days. notify the Company in writing that he desires to be restored , and in such notice give his latest mailing address. I find no merit to the defense contained in the answer of the Respondent that the collective-bargaining agreement which contains grievance procedures is a bar to this proceeding . I find no merit to the defense that Section 10(b) of the Act is a bar to this proceeding . The original charge was filed on July 25, 1957, amended. charges thereafter were filed on August 26 , 1957, and September 23, 1957, and the complaint issued on September 24, 1957, alleging unfair labor practices on and after March 1, 1957. The collective-bargaining agreement contains no provision applicable to the recall or rehiring of laid-off employees . It does, as shown above , contain a provision whereby a laid-off employee may retain his seniority during layoff in the event that he ever returns to work. In the absence of any agreement governing recalls or rehires, the Respondent is free to hire or return laid-off employees to work or not,. for any reason or for no reason , save only that the Respondent may not discriminate for reasons violative of the Act. The "Background" Evidence The General Counsel contends that the following events , although concededly beyond the 6-month limitation proviso imposed by Section 10(b) of the Act, are admissible and relevent for the purpose of appraising the character and quality of the conduct alleged in the complaint and to show the antiunion animus attendant on such alleged conduct. The General Counsel in his brief contends that, in point of time, it is significant to note that this claimed antiunion and antisteward animus first manifested itself about the time the Respondent was officially notified, in No- vember 1956, that a decertification petition was in circulation among its employees. Admitting that there is no evidence in the record that the Respondent instigated the petition, the General Counsel urges that the fact that the Respondent knew it was in circulation served to supply a real motive for the Respondent to embark upon a campaign to discourage union membership ; and that the temptation thus en- gendered was too great for the Respondent to resist . The General Counsel relies. on highly controversial testimony as to episodes on or about November 1, 1956, between Vice President Popkin and employee Oler; on January 4, 1957, between Chief Steward Clarence McKinney and Personnel Director Jack Moody; and on January 31 , 1957, with Popkin, McKinney, and employee Benna Mae Inman. THE BERKLINE CORPORATION 697 Employee Raymond Oler testified to a meeting with Lester Popkin around No- vember 1, 1956, in which he stated that he was called to Popkin's office and Popkin said, "I am coming off of your note, I can't trust you, I can't trust a liar." Oler inquired what he meant, and Popkin held up a piece of paper where upon Oler said, "Am I a liar?" and Popkin said, "You told me that you had nothing to do with bringing the union in here." Oler testified that he replied, "That's right, I didn't" and Popkin said, "Why did you become a steward?" whereupon Oler testified he answered, "Lester, you have promised me so many things and failed I had to get protection"; and continued, "Lester, do you say that I am a liar?" to which, ac- cording to Oler, Popkin answered, "The statement you gave me is what I am going by." Oler then replied by saying, "If you say that I misrepresented anything you are a liar." Oler continued to testify that Popkin said, "O.K., I'm going to give you the works. I just wanted you to know why I called you in here, I am going to give you the works and I am going to give you both barrels." It is uncontradicted that thereafter, Oler continued to work without interruption until he was discharged on June 21, 1957, for smoking on the job, at a time when Popkin was in Chicago. Lester Popkin testified to an entirely different version of the conversation be- tween him and Oler. He denied the testimony of Oler and specifically denied making the statements attributed to him by Oler. He did admit that each called the other a liar during the conversation. Popkin testified that shortly after the month of July 1956, Oler came to his office and inquired if Popkin would let him make feet for the chairs and stools during his offtime. Popkin testified he then told Oler he would try to help him but cautioned him to be sure to submit samples and not to invest money in machinery as the final decision for acceptance of such work would be made by quality control and the purchasing department of the Company. Popkin then talked with the people who handle the purchasing of feet and told them that Oler was going to submit samples. Popkin testified that the next thing he heard was that during the last part of October or the first part of November, Oler was claiming to others that Popkin had misrepresented to Oler and had cheated Oler by breaking his promise and costing Oler money. Popkin continued to testify that when he heard that, he called Oler to his office and accused Oler of making such remarks. When Oler denied making such remarks, it was then that Popkin called Oler a liar, and at that time told Oler that he wanted to get off a note he had endorsed for Oler as he was through with him as far as the note was concerned. After carefully weighing all the testimony, I credit Popkin's testimony and find that the conversation was related to the remarks Popkin had heard Oler was making about him; that the subjects of union or stewards were not discussed; and therefore this item of "background evidence" fails to shed any light on or explain the conduct alleged in the complaint as contended by the General Counsel. The second item of background evidence outside the 6-month period which the General Counsel seeks to have considered is testimony that on January 4, 1957, when certain stewards reported to work wearing steward badges, the Respondent's personnel director, Moody, threatened to discharge them unless they removed the badges. It is unnecessary to recount all the evidence surrounding this situation; but upon consideration of all the evidence, I find that the Respondent was justified in ordering the badges to be removed under all the circumstances. The facts were that on January 4, 1957, Moody was informed shortly after he arrived at the plant, by the assistant superintendent, that there were large union steward badges being worn by several employees in the plant and this situation was creating disturbance and causing lack of production; and that something should be done to eliminate the disturbance and get the employees back to work .3 Some of the other employees wore cardboard badges reading, "I am a company man" or "I am 'a company man and glad of it," which they had made themselves. Moody visited two departments in the plant, saw both types of badges, and noticed some employees huddled and whispering in small groups and not working. Moody called Clarence McKinney, chief steward, told him this was interrupting production, and the steward badges were to be removed. The cardboard badges were also ordered to be removed by a foreman. (Union buttons have been worn by the union employees in the plant continuously from November 1955, to the present without opposition by the Respondent.) No one was disciplined for wearing the badges as the situation quieted down and production resumed. I find that the Respondent was within its rights in objecting to the wearing of steward badges when it resulted in the inter- ruption and interference with plant efficiency. The situation has not been repeated S The testimony is conflicting as to whether steward badges had ever been worn in the plant before this day. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Respondent makes no objection to the wearing of steward badges which are still being worn in the absence of any further interruption of work. Such testimony relied upon by the General Counsel is no help as background evidence against which the allegations of the complaint may be considered, or as tending to shed any light on the Respondent's motives in connection with the allegations of the complaint. Another item of background evidence cited by the General Counsel as admissible and relevant is that on January 31, 1957, Vice President Popkin advised employees Clarence McKinney (also referred to herein as Chief Steward) and Benna Mae Inman that they could remove their union badges, that the Union was not needed, and that they were not going to have a union; and solicited Inman to withdraw from the Union. Popkin denied making such statements and his denials were corroborated by a disinterested witness who was present during most of the conversation among McKinney, Inman, and Popkin. The record will show that the occasion for this conference among Inman, McKinney, and Popkin was that Inman and her husband in the past had borrowed money for the purchase of a home on a note from a bank and that Popkin had endorsed the note. Originally, Mr. and Mrs. Inman, who were both working at the time for the Respondent, were making agreed payments of $20 per week by deduc- tions from their wages. In the summer of 1956, Mr. and Mrs. Inman voluntarily increased their weekly deductions from $20 to $50. After Mr. Inman left the employ of the Respondent, Popkin called Mrs. Inman to the office. Mrs. Inman objected to Popkin deducting $50 from her check after her husband had quit his job. McKinney testified that during the course of the conversation, Popkin said to Mrs. Inman: "If you get that union button off and get rid of McKinney and the union and come back up here, your payments is $50 and I will lower them down to $20 a month if you get rid of the union." But Mrs. Inman testified that during the conversation with Popkin, nothing was said about a change in the method of paying; and no mention was made about a change in payment. On cross-examina- tion, she testified: . All that was mentioned about the note was that if I didn't make $50 a week for him to take out of my check, that I would bring the difference up there each Friday." There is a vast difference between McKinney's testimony in that regard and Mrs. Inman's testimony. Mrs. Inman contradicted McKinney's testimony that Popkin offered to reduce her payments from $50 per week to $20 per month. I discredit McKinney's testimony. I credit Popkin's denials and Mrs. Inman's testimony that all that was said about the payments on the note was that if she did not make $50 per week to be deducted, she was to bring the difference every Friday. I credit Popkin's further denials and also credit his version of the conversation between him and Inman, and between him and McKinney. Accordingly, I do not consider the testimony of McKinney and Inman as having any weight as background testimony. After considering all the evidence concerning the situations as shown above on or about November 1, 1956, January 4, 1957, and January 31, 1957, I find that the conflicting testimony must be resolved in favor of the Respondent, and that accordingly there is no background evidence that can be relied upon for the purpose of appraising the character and quality of the conduct alleged in the com- plaint or to show antiunion animus attendant upon such alleged conduct as claimed by the General Counsel. In this connection the record contains uncontradicted testimony which bespeaks an attitude of fairness to the Union on the part of the Respondent. During the cross-examination of Freddie H. Parvin, assistant plant superintendent, the General Counsel asked him if he had ever ",torn down" a union notice from the bulletin board. Parvin replied that he had done so in the latter part of 1957. The General Counsel asked him why he had done so and Parvin explained that in clearing the bulletin board, he mistakenly took down the union notice, thinking it was an old one; but as soon as he discovered his mistake he went to the union steward at once, told the steward he had removed the notice by mistake, informed Jack Moody, personnel director, and within an hour another notice was prepared for the Union and put back on the bulletin board. Edward R. Hopson Hopson was laid off in an economic layoff on December 7, 1956. At that time, he had been employed over 5 years by the Respondent, was vice president of the Union, and had been a union steward in the sanding department since November 1, 1956. The Respondent knew he was a union steward. When he was laid off, he was working as a sander. During his employment with the Respondent, prior to the time when he was assigned to work as a sander, Hopson had worked a day or THE BERKLINE CORPORATION 699 two at a time, if someone were absent, on the planer, ripsaw, shaper, router, hard drum, and soft drum. During the period embraced by the complaint,4 Hopson applied for work on March 18; April 1 or 5; May 6 or 7; and the last time on June 3, 1957. When he applied to Jack Moody, personnel director, on March 18, he told Moody he came to see if he could get a job. Moody replied, "Sorry, I don't have a thing." On April 1 or 5, Hopson and Williard Hurst (also named in the complaint) went to the plant and Hurst talked on the telephone from the receptionist's office to Moody and Moody was asked if he had anything open for Hopson and Hurst. Moody replied that he was sorry but he had nothing at that time. On May 6 or 7, Hopson and Hurst went to Moody's office and asked for work. Moody replied the Company was hiring a few, mostly for the upholstery department and that was about all they were taking on; and that Moody did not have anything in their line of work at that time. Hopson and Hurst unsuccessfully applied for work for the last time on June 3, 1957. Hopson was offered employment by the Respondent and was returned to work as a sander on October 7, 1957. At the time Hopson was laid off on December 7, 1956, he was one of six employees in the sanding department. The Respondent for economic reasons decided to reduce its operations to the extent where only five sanders would be needed. The per- formance record of each of the six employees was examined and Hopson was selected for layoff because for the 6-month period preceding December 7, 1956, he had the lowest performance record except for 3 weeks, and for 2 of those 3 weeks he was tied for the lowest. (All the men including Hopson were rated over 100 percent for efficiency.) When Hopson was laid off, two sanding machines were removed, leaving machines for only five employees. No new sanders were hired and there was no change in personnel or the number of sanding machines from the time of Hopson's layoff until he returned to work as a sander on October 7, 1957. In September 1957, when a night crew of sanders was established for the first time, Superintendent Rice advised the personnel department that he needed two sanders on the night crew and Hopson was recalled as one of them. Williard Hurst Hurst was laid off in an economic layoff on December 7, 1956. At that time, he was a stacker in the lumberyard. He was notified by his foreman that he was laid off for lack of work. He had been a union steward in the lumberyard for about a year previous to his layoff and the Respondent knew that he was a steward. On December 20, 1956, January 6 and February 4, 1957, Hurst asked for work and was informed there was nothing open. Those failures to recall or rehire are not claimed to be violations of the Act. Within the period embraced by the com- plaint, Hurst went to the office of Jack Moody, the personnel director, in the last part of February, and asked when he could get back to work, but Moody said he was sorry that he did not have anything. The next occasion was on April 1 or 5, when (accompanied by Edward R. Hopson) he talked on the telephone: from the reception desk in the plant to Moody and asked if he had anything open for them to work; but Moody answered that he was sorry he had nothing at that time. The next occasion was on May 6 or 7, in Moody's office (Hopson also present) and Moody said they were hiring a few, mostly upholsterers, and did not have anything in their line at that time. Hurst unsuccessfully applied on June 3 or 5 (Hopson also present) and that was the last time he applied for work. During the time Hurst worked for the Respondent, he had worked in the dry-kiln but owing to his inefficiency, he was taken off that job and given work as a stickman. Superintendent Rice testified that while Hurst was working as a stickman in the lumberyard, he had refused to perform certain duties in connection therewith, and these refusals were taken into consideration in not recalling him for work in the lumberyard. On October 7, 1957, Hurst was given a job on the night crew operating a nailing machine 5 which previously thereto had not been operated on the night shift. The nailing machine is in a department different from the lumberyard. Moody testified that Hurst was put back to work when the job became available which the Re- spondent believed he could do and for which the Company had no better qualified applicants. When the Respondent wrote to Hurst on September 25, offering work, it informed him that his job in the lumberyard had been filled. 4 Prior to March 1, 1957, Hopson applied for work unsuccessfully five times in the months of December, January, and February. 5 A nailing machine is a machine which has a hopper into which nails are put. A block or piece of wood is placed underneath two drivers and a foot-operated pedal trips the nails, driving them into the block. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John H. Wilmouth Wilmouth had been employed approximately 4 years prior to his layoff. Wilmouth had been a union steward since November 1, 1956, in the shipping depart- ment until he was laid off, in an economic layoff, on December 7, 1956. The Respondent knew he was a union steward as he was included in the list of stewards given to the Respondent on November 1, 1956. Wilmouth's work in the shipping department consisted in putting an excelsior pad underneath the chairs to protect them before they went into cartons to be wrapped. Occasionally, he did some wrapping. Within the period embraced by the complaint, Wilmouth asked Assistant Personnel Director Montooth for a job sometime around the last of May 1957. Montooth said they were hiring some upholsterers. Wilmouth testified he is not an upholsterer and has never done any upholstery work. He did not ask for an upholsterer's job. The next and last time that Wilmouth applied for work was sometime in July 1957, when he again saw Montooth at the plant and said, "I hear you are hiring and I want a job." Montooth said they were hiring upholsterer- trainees. Wilmouth testified that he had been a member of the Union for about 1 year prior to his layoff in December 1956, and he could not say that the Company or his foreman treated him any differently than before the advent of the Union. On October 7, 1957, following a letter from Respondent dated September 25, Wilmouth went back to work in the shipping department at which time more employees were required in the shipping department because of increased work, and in addition to Wilmouth, a new employee was hired at the same time. Before Wilmouth was recalled, the Respondent had hired some new employees in the shipping department whom the Respondent believed to be potentially better qualified than Wilmouth. The Respondent at the hearing took the position that it did not recall Wilmouth until it had no better qualified applicants. Dudley W. Kesterson At the time of his layoff on December 7, 1956, Kesterson was a union steward in the finishing department. The Respondent knew he was a union steward. He had been employed approximately 8 years prior to his layoff and during that time had worked at several jobs in the lumberyard, frame shop, assembly room, cabinet department, and finishing room. He is blind in one eye. He wears glasses and testified his eyesight is as good in the other eye as it was when he went to work :8 years ago. He claims his lack of vision is no handicap. At the time Kesterson was working in the cabinet department, the foreman asked Superintendent Rice if he could find another place to put Kesterson as he could not do the job because of his eyesight. Rice looked around for a job that one with such a handicap could do and when a vacancy occurred in the finishing department for a job that did not require much skill and was something that could be done "almost without looking," he called Kesterson in and told him he thought he had a job that Kesterson could do. Kesterson accepted the job and stayed on it for a year until he was included in the economic layoff in December 1956. That job was to take feet for the chairs from a box and put them on dowel pins prior to processing treatments of staining, sealing, sanding, and lacquering. After such processing treatments, the feet are removed and packed in a box. After his layoff, styles for chairs changed, so that very few chairs were manufactured with such feet on them. As a result, no one has been hired to fill Kesterson's job. For the few chairs that require such work, other employees put the feet on the dowel pins in addition to the processing treatments, from time to time as needed. Within the time embraced by the complaint,6 Kesterson applied only once for work and that was in July 1957, when he asked Moody, "What about a job?" Moody replied that the Company was not hiring anyone except upholsterers. Kesterson testified that he had never done upholstery work. He never applied thereafter for work and has not been reemployed. At the hearing, the Respondent's defense was that Kesterson has not been recalled because his job was abolished and he has not been considered as being qualified for any other available work. Lavinia Deering Deering was a sewer in the sewing department for approximately 4 years prior to her layoff in the economic layoff of February 22, 1957. She had not been at 8 The only other times he asked for work were in December 1956 and January 1957. THE BERKLINE CORPORATION 701 work for the week prior to February 22, and her foreman telephoned to her and told her that she was laid off because she was inefficient. The Respondent knew that she was a steward for the Union. Deering was one of the five laid off who had the lowest production records among the sewers for the period from July 1, 1956, to the layoff. On April 3 she asked Moody in person for work. Moody said some had been recalled and for her to keep in touch with him and to let the Company know by postal card if she could not come in in person, that she was willing, ready, and able to go back to work. Pursuant to that direction, she wrote a letter to the Respondent which it received on April 18, 1957, stating that she was ready, willing, and able to come back to work. She testified that she made approximately five telephone calls after April 3, and talked with Moody each time, except that her last telephone call was some unknown time in August 1957, and she spoke to the assistant director, Montooth, at that time. She modified that statement by stating that she was not certain that the last call was in August. She summed it up by saying that she made about five telephone calls but could not swear to the dates: when she telephoned. Deering also testified that she had been steward in the sewing. department since February 2, 1956, and was one of the first stewards. She testified that she failed to make piecework during the last half of the year 1956, and did not. challenge the accuracy of the Respondent's records showing the number of days; she had lost from work. At the time of the hearing, she had not been recalled for work. At the hearing, the Respondent's defense was that Deering was not recalled or given a job because it considered it had potentially better qualified applicants. Ruby F. Thomas Thomas worked as a sewer in the sewing department from March 1949 until she was laid off with four other sewers on February 22, 1957, for lack of work. The Respondent, in anticipation of that economic layoff, examined the production records of all the sewers for the period beginning July 1, 1956, up to the layoff, and Thomas was one of five sewers (Foshie, Goins, Brinkley, Deering, and Thomas) laid off who had the lowest production records-those who had missed making standard production the most times. At the hearing, the Respondent's defense for not recalling Thomas to work was that it thought they had potentially better qualified applicants. In the early part of the week following her layoff, Thomas testified that she telephoned to Jack H. Moody, presonnel director, and requested him to mail her check to her; in the course of the conversation she inquired as to her chances of being recalled right then and Moody informed her there was not any chance. She testified the next time she applied for employment was by registered letter, dated March 28, in which she stated, "I am ready, willing and able to return to work any time you see fit to call me." She received no reply. She testified the next time she applied was about April 2. She testified that she talked personally with Moody, in Moody's office upstairs in the plant, and applied for work. She said ,that Moody said he was sorry but he did not have anything right then. When she asked him why she had been laid off, she testified that he replied it was not his idea that she be laid off, but Foreman LeClaire came to him with a list of names of those to be laid off. She testified that the next time she applied for work was around April 25, in Moody's office. She told him she came back to apply for work and Moody said he was sorry but he did not have anything for her then. She told him she had heard Mrs. Goins had been called back and wanted to know why she had not been called. She testified that Moody said it was her (Thomas') production; and Thomas told him her production was higher than Goins' production and the others who were laid off when she was. Moody, according to Thomas, said he was sorry that he did not have anything but that he would recommend her; that he did not do the actual hiring, but when a job came up he made recommendations, and Superintendent Rice and Foreman LeClaire did the actual hiring. The next occasion when she applied for work was either the first or the middle of May 1957, when she telephoned to Moody and told him she was still unemployed and willing and able to come back to work anytime he saw fit to call her. She testified that Moody said he was sorry but he did not have anything and said, "Ruby, I'll just tell you, things look awfully dark." On or about May 25 or 28, 1957, Thomas went to the plant to see Moody but left without seeing him after waiting about 45 minutes. Thomas testified that at some unknown date thereafter, she telephoned to the plant and left a message with Montooth, assistant personnel director, that she was asking for work, and he said he would make a note that she had telephoned. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 24. 1957, Thomas testified that: She went to the plant and had a conver- sation with Moody in the receptionist's office between 8 and 9:30 a.m.; the switch- board operator was at her work about 7 feet away; she asked Moody for work and inquired if things looked any better; Moody said no, he was sorry, and he did not have anything for her and as far as things looking any better, they did not. Thomas testified further that Moody said, "Ruby, I'm just telling you this-it's between you and I, but if you tell it, I will deny it," and continued to tell her that she should know the Company had no intention of rehiring her unless the Labor Board made them, and that would be a long-drawn-out thing; and that Clifford Rice, the plant superintendent, and Vice President Popkin had done things in their own way so long they felt they could continue. Thomas continued that Moody said that he guessed we knew our places had been withdrawn; that they were planning an election after the hearing and he saw no reason why they could not have it, and they were having a vote to see if the Union stayed in or not. Thomas testified that on July 15, 1957, she had another conversation with Moody in the same receptionist's office; that Barbara Noe was the switchboard operator about 6 or 7 feet away, performing her duties at the switchboard; that she told Moody she came back to ask for work-any kind of work. She testified that Moody said he was sorry that they did not have anything but that he had recommended her as he had promised. Thomas then said, according to her testimony, that she was surprised that Mrs. Lavinia Deering had not been called back, to which Moody replied that Deering's case was similar to Thomas'. Thomas continued to testify that Moody mentioned the union stewards by name, Wilmouth, Hurst, Hopson, and Kesterson, and said that the Company had hired over 100 new men and not one of those job stewards had been called back to work; that Lester Popkin (vice presi- dent) and Clifford Rice (superintendent) had done things in their own way for so long they thought they could still continue; whereupon Thomas testified that she told Moody they might still continue but she thought that it was an awful unfair way the way they had treated her. Moody categorically denied the testimony of Thomas with respect to the conver- sations she claims she had with him on June 24 and July 15. Moody testified that he did sit and talk with her in the latter part of June, in the receptionist's office, and she asked about getting back to work, and said she was ready, willing, and able. Moody testified that he informed her there were no vacancies and could offer no encouragement at that time; that she mentioned the Company had hired some girls in the sewing department and Moody admitted to her that was so. Moody testified that Thomas then stood up, became provoked and said she did not see why she could not come back to work since the Company had hired others. Moody testified that he replied that he was sorry, but that is the way it is. Moody testified that she left and he has not seen her thereafter. Moody denied specifically the statements attributed to him by Thomas in which she said he had no intention of hiring her back unless the Labor Board required it; denied that he ever discussed the Union with Thomas or that he had ever stated to her the Company was planning an election to see if the Union stayed in; and denied that he had ever said to her that the Respond- ent had hired over 100 men and not one of the job stewards had been recalled; and denied that he had ever stated to her that Rice and Popkin had been doing things for so long they felt they could continue; or that he had told her the Company had no intention of recalling her. Moody further denied that Thomas came to the plant and had another conversation in July, and in this denial he is corroborated by the testimony of Barbara Noe, the telephone operator and receptionist, who testi- fied that she knows Thomas because she went to high school with Thomas' daugh- ter.7 Noe testified that Thomas and Moody conversed together in June and she heard Thomas say to Moody that she knew some more hirings had occurred and inquired why she had not been hired. Noe testified that Moody replied, "Mrs. Thomas, I can assure you your application is studied each time there is an opening," and that Thomas then stood up (she does not know what Thomas said then), Moody opened the door for her and she left. Noe testified that was the last time she saw Thomas at the plant. The Respondent also called the two relief operators who testi- fied that Thomas was never there while they were relieving Noe. On the basis of the testimony of Noe and the other relief operators (Carter and Shaver) corroborating the testimony of Moody that Thomas did not visit the plant in July, I find that Moody and Thomas did not have the conversation on July 15 at the plant as testified to by Thomas. 1 further credit Moody's denial of the s Although on direct examination Thomas testified that Barbara Noe was the telephone operator who was present, on cross-examination she testified that she would not swear that it was Noe. THE BERKLINE CORPORATION 703 controverted statements attributed to him by Thomas as having been made during the conversation on June 24. Thomas further testified that the next occasion when she unsuccessfully applied for work was during the last part of October or the first part of November 1957, when she again talked with Moody in the receptionist's office for not over 10 minutes and the switchboard operator was present. The record does not disclose the contents of that conversation. Thomas admitted that outside of the office clerical force, the only department in the plant that hired females was the sewing department and she was not qualified to do office clerical work Thomas testified that she had been a member of the Union since April 1956, and became treasurer of the Union around November 1, 1957. Thomas testified further that nothing had ever been said to her about her production until 3 weeks before she was laid off on February 22, when the foreman asked what was wrong that she was not making production; that she replied she had been making it for a while and he told her if she would quit talking around and not go to the restroom so often he would see that she "got better work, or got a break" because there were better jobs coming up and Thomas and two other sewers had seniority over the rest of the girls. Thomas also testified to a 1952 compensation accident in which she sustained an injury to her leg, and that she had no treatments for her leg in the company infirmary since the latter part of 1953. She testified that after 1953, she brought cloths with her from home and went to the restroom where she applied hot cloths to her leg for 5, 10 or 15 minutes in the morning and afternoon, and on occasions she did it more than once in the morning and once in the afternoon. An important question to be decided is whether the Respondent knew that Ruby Thomas was treasurer of the Union prior to July 8, 1957. If the Respondent did not know she was treasurer until then, then there is no proof here that it knew she was a member of the Union. Thomas testified that she joined the Union about April 1956 (the month following the execution of the collective-bargaining agree- ment), and became treasurer of the Union around November 1, 1956, but the Union in its written notice dated November 1, 1956, to the Respondent listed Wallace Cope as secretary and treasurer. By written notice to the Respondent dated November 29, entitled "Supplemental List of Officers" the Union listed Bobby Ray Minnich as recording secretary in place of Alden Vaughn who was listed in that office on the November 1 list of officers. Thomas was not referred to in either the November 1 or November 29 notices. By notice to the Respondent dated July 5, 1957, and received by it on July 8, 1957, the Union listed Thomas as treasurer. In an attempt to supply proof that the Respondent knew that Thomas was treasurer before July 1957, the General Counsel called Clarence McKinney, in rebuttal, who testified that in December 1956, he went to Moody's office and during the course of a conversation on another matter, Moody said he wanted to ask him something about the new treasurer, Ruby Thomas; that Moody said he had called Thomas to his office and suggested that she take sick leave but she had refused; and Moody asked McKinney what the Union was going to do about it. On direct examination, McKinney testified that the conversation with Moody was held right after a steward was laid off on December 7, 1956. On cross-examination, McKinney was an evasive witness. He testified that the conversation with Moody was in the middle or last of December 1956; that in the last of November 1956, the offices of secretary and treasurer were split; that the office was split the first of December because Wallace Cope became business agent for the District Council. McKinney's testimony continued: Q. Do you know of any notice that was given to Berkline after the split in writing such as this letter, Respondent's Exhibit 7? (written notice of Novem- ber 1). A. Moore (president of the Union) handled that. Q. I did not ask you that. I said do you know of any? A. They wrote some. I know they wrote some more out, yes. Q. Do you know that they advised Berkline that the job was split on November 1st? A. They was supposed to. Q. I did not ask you that. I said do you know that they did? A. I said they wrote some more out, but I don't know who was on it. Q. Do you know that they did and that they delivered the notice to Berkline, Mr. McKinney? A. Well, I delivered several up there. Q. I'm not asking you about several. I'm asking you about whether or not you know that the local, after December 1st, notified Berkline of the split? 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. To the best of my knowledge, they did. Q. Do you have a copy of it? A. Moore does, I guess. Q. I did not ask you about Moore. A. Well, I don't know. Q. Did you see it? A. I seen the list. Q. Did you see a letter to Berkline notifying them that the officers (sic) of secretary and treasurer had been split on December 1, 1956? A. I don't recall that I did. Q. Would you say that you did not see one? A. No, I wouldn't do that. Q. Would you say that you did see one? A. No, I wouldn't do that. Moody, called in surrebuttal , testified that he did not recall a conversation in December 1956 with McKinney with reference to Thomas; that he never discussed the question of Thomas taking sick leave with McKinney; and that he had never been advised in December 1956 that Thomas had been made treasurer of the Union. I do not credit McKinney's testimony that Moody discussed Thomas as the new treasurer of the Union, and find on the entire record that the first knowledge the Respondent had that Thomas was treasurer of the Union was on July 8, 1957, when it received the written notification to that effect from the Union. I find, further, that there is no evidence in the record that the Respondent know that Ruby Thomas was a member of the Union prior to the written notification on July 8 that she was the treasurer. The General Counsel introduced evidence concerning the terminations from, and additions to, the payroll in the sewing department following the layoffs of the five sewers on February 22, 1957, which established that Edith Holston quit in the week ending March 2, 1957. No one was hired in the sewing department until March 23, 1957, when Clara Goins returned to work following her layoff on February 22. In the week ending April 27, Frances Turner voluntarily quit, and in the same week Edna Farmer, H. Sunderland, and E. Harville, who were trainees when they were laid off in December 1956, returned to work. In the week ending May 4, Alice Mease, a trainee who had been laid off in December 1956, returned to work; and Edith Brinkley, who was laid off on February 22, 1957, also returned to work. In the week ending May 11, Clifford Cross voluntarily quit. In the week ending May 11, Ethel Turner returned to work from a leave of absence. In the week ending May 22, four trainees (Bacon, Lowery, Knight, and Wallace) were hired. In the week ending June 15, Benna M. Inman voluntarily quit. In the week ending June 22, two trainees (Smith and Walton) were hired. In the week ending June 29, two trainees were hired (Potter and Labhart). In the week ending August 3, two trainees (Street and Wallen) were hired. Of the 10 trainees above who were hired as new employees (Bacon, Lowery, Knight, Wallace, Smith, Walton, Potter, Labhart, Street, and Wallen) 6 were not working at the time of the hearing (Wallace, Walton, Potter, Labhart, Street, and Wallen). The four trainees (Farmer, Sunderland, Harville, and Mease) who were laid off in December 1956 and returned to work as shown above have continued to work. Thus, out of 14 trainees (10 newly hired and 4 reemployed) 8 have remained in employment. Apart from the 14 trainees referred to, and 1 sewer who returned from a leave of absence, the only ones hired or rehired in the sewing department after February 22, 1957, were Goins, Foshie, and Brinkley-all 3 of whom had been laid off with Deering and Thomas. No claim is advanced that Deering and Thomas, with their years of experience, were candidates for the training program or would have accepted employment in such program if offered. The Respondent maintains a training program, whereby in anticipation of different styles and different changes in preparation for future production it employs, reemploys, and weeds out, trainees in order to have a supply of competent sewers at all times in anticipation of Respondent's sales for later periods. In anticipation of good busi- ness for the fall of 1957, it hired trainees in the spring and summer of 1957, as shown above. The training period allows a trainee 6 months to become proficient, although some have become proficient earlier. During the training period, they are paid a fixed hourly rate which they receive regardless of production. When trainees reach the point where they exceed the work necessary for their hourly pay, they automatically go on incentive rates which are paid over and above that which is paid for standard production. On the present state of the record, I can find no unfair labor practice in the Re- spondent's rehiring and hiring trainees to the exclusion of Deering and Thomas, be- THE BERKLINE CORPORATION 705 cause such would be tantamount to a holding which I am unwilling to make in this situation that Thomas and Deering were entitled to be returned to work before the Respondent could continue with its customary training program. Since the only other sewers besides the trainees who were hired or recalled were the three sewers (Goins, Foshie, and Brinkley) who were laid off at the same time as Deering and Thomas, this case reduces itself to the question as to whether the Respondent vio- lated the Act by recalling Goins, Foshie, and Brinkley in preference to recalling three sewers of whom two should have been Deering and Thomas.8 There is no evidence that Goins and Foshie were or were not members of the Union. Brinkley testified that she did not belong to the Union but there is no evidence that the Respondent knew she was nonunion when she was recalled to work. (Thomas, the union treas- urer, testified she did not know whether Goins, Foshie, and Brinkley were members of the Union.) Deering was a known union steward; but, as found supra, the Re- spondent did not know that Thomas was a member of the Union until July 8, 1957. There is no doubt from this record that the proffered reason by the Respondent for not reemploying the six individuals named in the complaint, namely, that they did not notify the Respondent in writing every 30 days that they desired to be restored, is not the true reason. The entire record shows there is no substance to such a reason as a matter of contract with the Union or as a matter of policy. If there was such a policy, it was honored more in its breach than in its observance, as borne out by this record. The General Counsel contends in his brief that an inference of dis- crimination arises which the Respondent has failed to explain by reason of the Re- spondent's antisteward and antiunion animus. I have found that no such animus exists. Neither do I draw any adverse inference from the fact that the Respondent knew that a decertification petition was in circulation among its employees, for the Respondent was duly notified of such petition, and there is not the slightest evidence that the Respondent had anything to do with such petition. The General Counsel contends that the expansion of the plant facilities, its recall of nonunion employees, its hiring experience during the period from January 1 to August 1, 1957, its employee turnover during that same period, and its failure to apprise the complainants of the reasons for not recalling them are added reasons supporting an inference of discrimi- nation. The record shows uncontradicted evidence that the new addition to the plant was not in operation until July 15, although the Company had moved in temporarily on June 1, and it was not in full production until October or November. With refer- ence to General Counsel's contention with respect to the recall of nonunion em- ployees, there is no evidence that the Respondent know they were nonunion and recalled them for that reason. Nor does the hiring experience of the Respondent from January 1 to August 1, 1957, support an inference of discrimination. The General Counsel in his brief states that the Respondent hired or recalled from layoff a total of 338 employees. When that number is analyzed and broken down, apart from trainees, it has little application to the sewing room where, apart from trainees, the question presented was whether the Respondent violated the Act in recalling Goins, Foshie, and Brinkley instead of recalling Deering and Thomas. The fact that the Respondent hired a total of 338 employees loses further significance when that number includes 204 upholsterers and 20 office employees, in the period referred to, which has not the slightest application to the case at bar. The overall total of 338 employees also includes departments not in any way concerned here; such as 19 hired in parts machinery department, 16 is the construction department, 15 in frame as- sembly department, and other employees in scattered departments in no way related to this case. The record further shows that no one of the laid-off employees was promised that he or she would be recalled. While there is evidence in the record that the Re- spondent anticipated that they would be recalled when work picked up, I do not con- strue such an unexpressed anticipation as the equivalent of a promise to rehire a laid- off employee. Among the instances cited by the General Counsel in his brief which he claims casts serious doubt on the credibility of Foreman LeClaire of the sewing department, is LeClaire's answer, during General Counsel's cross-examination, that he did not see how he could answer that question without incriminating himself. The record as I interpret it and as I followed LeClaire's testimony at the hearing shows that he tried to explain what he meant by the use of the words "incriminating myself" but he was unable to finish the sentence because he was immediately inter- 8 The complaint alleged that the Respondent 's unfair labor practices with reference to Deering and Thomas have been on and after March 23, 1957. Coins was recalled during the week of March 23. 508889-60-vol. 12 3-4 G 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rupted by General Counsel asking him if he wanted to take the fifth amendment. In that regard, the record reads: The WITNESS : Your Honor, I don't know how I can answer that question without incriminating myself-I mean making myself- Q. (By Mr. Malone.) Do you wish to take the Fifth Amendment? LeClaire was then permitted by me to answer the question in his own words which he proceeded to do. I considered LeClaire to be an honest and truthful witness who tried to answer all questions in his entire testimony as best he could. There is also evidence in the record that the Respondent considered the layoffs to be more or less temporary and that it was customary to recall laid-off employees when business improved . Such a custom, however, I do not construe as denying to an employer the right not to recall any employee with or without reason, subject to the proviso only that the employer's refusal is not prompted by motives violative of the Act. Upon the basis of all the foregoing , and upon the entire record, I conclude and find that the General Counsel has failed to prove by the required preponderance of evidence that the Respondent violated Section 8(a)(3) and ( 1) of the Act as alleged in the complaint . I shall therefore recommend that the complaint be dis- missed in its entirety. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and ( 5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings , and on the entire record in this proceed- ing, I make the following: CONCLUSIONS OF LAW 1. Local 2888 , United Brotherhood of Carpenters and Joiners of America, and its Local 2888 are labor organizations within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at the Respondent's Morristown, Tennessee, chair manufacturing plant including over-the-road and local truckdrivers, garage maintenance employees, the general handyman , production control clerk, industrial engineering clerk, lumberyard department employees , frame department record clerks, the upholstery department clerks, shipping department clerks, checkers, wrappers, carloaders, truckloaders , janitor, upholstery department expediter, build- ing maintenance department employees ; but excluding purchasing , addressograph, piece-rate records, payroll , accounts receivable, and order processing clerks, typists, file and mail clerks, telephone operator , other office clerical employees , technical employees in the industrial engineering department, other technical employees, watchmen, guards, nurses, other professional employees , supervisory trainees en- gaged in processing sales records, the garage foreman, and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union was on January 23 , 1957, is now, and at all material times has been, the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining , within the meaning of Section 9(a) of the Act. 4. By failing and refusing, on January 25, 1957, and since that date, as found in section III, above, to bargain with the Union as the exclusive representative of the Respondent's employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not violated Section 8(a)(3) and ( 1) of the Act as alleged in the complaint. [Recommendations omitted from publication.]